Emmanuel Agbalugo v. York University, 2011 HRTO 1881

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emmanuel Agbalugo

Applicant

-and-

York University

Respondent

interim Decision

Adjudicator: Dale Hewat

Date: October 18, 2011

Citation: 2011 HRTO 1881

Indexed as: Agbalugo v. York University

WRITTEN SUBMISSIONS

Emmanuel Agbalugo, Applicant ) Self-Represented

York University, Respondent ) Joanna Rainbow, Counsel

1This Interim Decision addresses the rescheduling of this hearing following the receipt of medical information from the applicant’s doctors regarding the applicant’s readiness to attend a hearing and what accommodations are necessary to assist the applicant during the course of the hearing. In addition, this Interim Decision deals with the applicant’s request to “appeal” my Interim Decision, dated July 8, 2011 in which I refused to allow the applicant to expand his list of witnesses originally filed on May 20, 2010.

Medical Information

2In the July 8, 2011 Interim Decision the applicant was asked to provide medical information from a medical practitioner that addressed whether the applicant is medically fit to participate in the hearing. As well, the Tribunal sought information on the type of accommodation required during the hearing such as providing breaks, length of the hearing and whether any assistive devices were required to assist the applicant with any drowsiness caused by sleep apnoea.

3The applicant provided a Doctor’s note from Dr Slyfied dated July 4, 2011, which stated that the applicant should be recovered sufficiently by November 2011. A second doctor’s note from Dr Sherkin, undated, advises that the applicant is undergoing chemotherapy. As well, information was provided that recommended that the applicant take breaks during the hearing to deal with sleepiness.

4In an email to the Tribunal on August 30, 2011, the applicant also advised that he is responding to treatment and that he is ready to attend a hearing subject to accommodation recommended for breaks. The applicant also requested that a hearing not be scheduled on a Thursday because he attends the hospital for treatment on Thursdays. Furthermore, in the applicant’s submissions dated September 3, 2011, he stated that he is ready to stand for hearing in November 2011 and that he is seeking up to four days for the hearing. He also requests that closing submissions be made in writing.

5While it is not clear how many breaks the applicant will require during the course of the hearing, it is evident that the applicant and his doctor agree that he is ready to attend a hearing. I am satisfied that reasonable accommodation will be given to the applicant during the course of the hearing and that every effort will be made to allow the applicant sufficient time for breaks as long as such breaks do not result in undue delay that would prevent completion of the hearing.

6At this stage of the proceedings it is premature to make a ruling that closing submissions shall be made in writing. Once the evidence is heard in the case, then the parties will be asked if they wish to make oral or written closing submissions. Depending on what makes the most sense for the parties and the Tribunal and for concluding the hearing in a timely and efficient manner, the parties will be directed, at that time, on how closing submissions will be made.

Witnesses

7On September 3, 2011, the applicant provided written submissions to the Tribunal seeking to “appeal” the Interim Decision, dated July 8, 2011, in which his request to add additional witnesses was denied. According to his September 3, 2011 submissions, the applicant claims that the decision to not allow him to call the additional witnesses will be fatal to his case. The applicant also claims that he believed, following the first day of hearing on May 20, 2011, that I would be providing him with advice on what witnesses would be appropriate for his case and that he has not received a letter or decision in that regard.

8The Tribunal notes that the applicant has framed his request as seeking to “appeal” the Interim Decision of July 8, 2011. The Tribunal’s Rules for Transitional Applications do not provide for appeals from interim decisions. The Rules do permit parties to ask the Tribunal to reconsider a decision, but a request for reconsideration is only available with respect to final decisions of the Tribunal (see Rule 25). A decision regarding witnesses is not a final decision and there is therefore no basis for a request to reconsider. However, in the circumstances, I have reviewed and carefully considered the applicant’s submissions of September 3, 2011 and have decided that it is appropriate to provide a more detailed explanation of why I refused to accept the list of additional witnesses, and to provide further directions regarding the applicant’s proposed witnesses.

9The applicant’s original list of witnesses filed on May 20, 2011 referred to six people: Nancy Payne, Jamaal Fyeffe, Pius Ilogu, Chief Uche Ezemenari, Clara Agbalugo and his son Willinsgood Agbalugo. The additional list of witnesses he sought to add prior to the July 8, 2011 Interim Decision were the Principal and Vice-Principal from Daystorm Public School, Mr. Guyadin, Rounna Jones, Roxanna Bromley, Naima Galadima, Adannay Nwogo and Mr and Mrs. Obiakor. In his September 3, 2011 submissions the applicant clarified that he no longer wishes to call Chief Uche Ezemenari, Pius Ilogu and Naima Galadima and that he only needs to call either Mr. or Mrs. Obiakor. In total, therefore, the applicant is seeking to call 11 witnesses in addition to his own testimony.

10In his September 3, 2011 submissions the applicant explains that he needs to call all of these witnesses because his main witness, Nancy Payne, who was his adjunct Professor at York University, is not going to provide the testimony that the applicant believes that she had promised to state.

11The respondent objects to the applicant’s request to add this list of witnesses. First, on the basis that he has already sought twice before to change his witness list and was denied twice by the Tribunal in Interim Decisions dated April 19, 2011 and July 8, 2011. Second, the respondent argues that none of the new witnesses mentioned have any relevant, reliable (partly due to passage of time), or material evidence to give because they have no direct or reliable knowledge of the material events alleged by the applicant. Third, the respondent argues that there is no reasonable basis to assume or infer that any of their alleged statements is a true reflection of what the proposed witnesses would in fact say at the hearing.

12The respondent has also filed a statement by Nancy Payne, in which she has reviewed the draft witness statement that the applicant prepared in May 2010 concerning what he believed would be her evidence at the hearing. In her statement, Ms. Payne disagrees with the purported evidence outlined by the applicant and indicates a different set of facts that conflict with the applicant’s version of events that was filed by the applicant as Ms. Payne’s will-say statement.

13In both previous Interim Decisions (April 19, 2011 and July 8, 2011) that I issued with respect to the applicant’s request to expand his witness list, I denied his request for two reasons. First, the applicant’s request was denied because of his delay in filing the request over one year after the May 20, 2010 hearing and after three adjournment requests allowed in his favour. Second, I concluded that the list of people noted by the applicant included people who had not been mentioned in his Application and witnesses whose testimony could be covered by the witnesses already scheduled to be called by both the applicant and the respondent.

14In order for evidence to be relevant to this proceeding, the proposed evidence must provide some basis to support the applicant’s allegations set out in his Application from people who have direct knowledge and involvement of the facts. Although two Interim Decisions have been issued denying the expansion of the applicant’s witness list, as noted above, I have determined that it is appropriate to provide a more detailed explanation of why I refused to accept the list of additional witnesses. This Interim Decision also provides direction on which of the applicant’s witnesses may have relevant evidence and who I may decide to hear testimony from depending on their confirmation that they have reviewed the applicant’s witness statements that he prepared and agree that it contains a true statement of their evidence at the hearing.

15In terms of the original list of witnesses filed and only with respect to those witnesses who remain on the applicant’s witness list as of September 3, 2011, the applicant lists Jamaal Fyeffe, one of the applicant’s classmates and a student teacher at Daystorm Public School. Having reviewed Mr. Fyeffe’s proposed evidence, it is clear that while he was a friend of the applicant and was told many things by the applicant about his alleged discriminatory experience as a student teacher at Daystorm Public School and in the Bachelor of Education Program at York University, Mr. Fyeffe did not have any direct knowledge, experience or involvement in any of the decision-making regarding the applicant’s teaching assignments or any of material facts alleged. As a result, the applicant has not established the relevance of such proposed evidence to the issues before me and there is no need for me to hear any testimony from this witness.

16With respect to the applicant’s wish to call Clara Agbalugo (his ex-wife) and his son, their evidence pertains to what they witnessed in terms of how the alleged discriminatory conduct affected the applicant at home and in his personal life. Such evidence might be relevant for submissions on remedy. However, at this stage of the proceedings it is too premature to require their evidence. As noted in paragraphs 21 and 22 of this Decision, I first want to hear the applicant’s own evidence in order to determine whether I will require further evidence from other potential witnesses in this case.

17Having again reviewed the applicant’s amended witness list provided on September 3, 2011, it is evident that those proposed witnesses who were former classmates or recent graduates from the Bachelor of Education program have no direct independent knowledge, apart from what the applicant told them, about the allegations of discrimination raised in the Application. In addition, there are no particulars provided that give any basis for inferring that their circumstances were in any material way similar to those of the applicant’s. Accordingly, there is no reason to hear testimony from Roxanna Bromley or either Mr. of Mrs. Obiakor.

18Similarly, those witnesses listed as teachers or Professors who the applicant spoke to about his concerns or who could provide information about the supervision of student teachers in the Bachelor of Education program do not provide relevant evidence concerning the applicant’s claims of discrimination. In terms of Rouanna Jones, she was never mentioned by the applicant in his Application nor did she supervise the applicant. Any testimony regarding the role of supervision of student teachers would best be given by either Nancy Payne or the respondent’s Dean of the Faculty of Education or the teachers who are listed in the respondent’s list of witnesses. As a result, there is no need to hear testimony from Rouanna Jones.

19There is also no need to hear testimony from Adannaya Nwogo who the applicant claims he spoke to about the alleged ill-treatment by Yonette Dey, but again was not mentioned by him previously. Ms. Nwogo did not know Yonette Dey and the applicant claims that Ms. Nwogo told him to complain to Professor Solomon but that Professor Solomon did not follow up on his complaint. Other than the applicant claiming that he told Ms. Nwogo about his concerns, she has no direct knowledge of the events, does not know Yonette Dey and there is no information that Ms, Nwogo had any contact with Professor Solomon who is now deceased.

20Upon further review, in terms of the proposed evidence of the Principal and Vice-Principal of Daystorm Public School, it appears that they may have relevant evidence with respect to the applicant’s student teacher experience at that school and the reasons for his removal and transfer to another school. Similarly, even though the respondent asserts that Mr. Guyadin is not related to Yonette Dey, as the applicant insists, and does not have relevant evidence, it is apparent from the applicant’s submissions that Mr. Guyadin had direct involvement, in terms of review and supervision as his Adjunct Professor during the applicant’s assignment at Daystorm Public School. However, before I am willing to consider whether these three proposed witnesses have any evidence that is relevant to this hearing, I will need to be provided with a signed statement from each of them that they have reviewed the witness statements prepared by the applicant and that the matter contained within the statement is true and within their knowledge. Based upon my review of these signed witness statements, and any submissions from the parties regarding the relevance and admissibility of this proposed evidence, I will determine what evidence will be allowed and will make suitable arrangements to receive their evidence.

Continuation of the Hearing

21Having reviewed each of the parties’ submissions with respect to witnesses and length of hearing and the allegations in the Application, it makes most sense to schedule the hearing for two days to focus solely on the applicant’s evidence. I have set aside two days in order to ensure that the applicant has sufficient time to fully participate in the hearing with the accommodation of breaks as needed by him. During these continuation days, I wish to hear all of the applicant’s evidence and the respondent will be given the opportunity to cross-examine the applicant, with a further opportunity for the applicant to provide any further testimony in reply evidence. At the conclusion of the applicant’s evidence, I will be requesting the parties to make submissions based solely on the applicant’s evidence of whether the Application has any reasonable prospect of success. I will also be asking the parties to make submissions on whether the testimony of the Principal and Vice-Principal of Daystorm Public School and Mr. Guyadin is relevant to the applicant’s case in the event that I find that I need to hear further evidence from the applicant and respondent in this Application.

22As a result, it will not be necessary for the parties to require any of their witnesses to attend on these two continuation dates. The continuation of the hearing following the applicant’s evidence and the calling of any additional witnesses will depend on my findings on the question of whether this Application has any reasonable prospect of success.

23In conclusion, the applicant is required to provide to the Tribunal with a copy to the respondent, signed statements from the Principal and Vice-Principal that he has referred to from Daystorm Public School as noted in paragraph 19 of this Decision. The applicant will be required to provide these statements no later than 14 days prior to the scheduled continuation hearing dates. Any submissions from the parties regarding the relevance and admissibility of this proposed evidence must be delivered to the other party and filed with the Tribunal no later than 7 days prior to the scheduled continuation hearing dates.

24The Registrar will be contacting the parties to schedule two dates for the continuation of this hearing and will ensure that such dates do not fall on a Thursday, as requested by the applicant.